Citation Nr: 0604164
Decision Date: 02/14/06 Archive Date: 02/22/06
DOCKET NO. 04-08 604 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a left knee
disability.
2. Entitlement to service connection for a left hip
disability.
3. Entitlement to an initial (compensable) evaluation for
obstructive sleep apnea.
4. Entitlement to an initial (compensable) evaluation for
colon resection.
5. Entitlement to an initial (compensable) evaluation for
surgical scars.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Milo H. Hawley, Senior Counsel
INTRODUCTION
The veteran had active service from July 1979 to February
2001.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
FINDINGS OF FACT
1. The veteran does not currently have a left knee
disability that is related to active service.
2. The veteran has mild degenerative changes of the
acetabulum that were first manifest during active service.
3. The veteran's obstructive sleep apnea has been manifest
by the need of a breathing assistance device throughout the
appeal, but chronic respiratory failure with carbon dioxide
retention or cor pulmonale or required tracheostomy are not
shown.
4. The veteran's service-connected colon resection is
manifest by frequent episodes of bowel disturbance with
abdominal distress throughout the appeal, but diarrhea or
alternating diarrhea and constipation with more or less
constant abdominal distress is not shown.
5. The veteran's transverse surgical scar has been manifest
throughout the appeal by classic muscular spasm that is
tender and painful.
CONCLUSIONS OF LAW
1. A left knee disability was not incurred in or aggravated
during active service. 38 U.S.C.A. §§ 1110, 1131, 5102,
5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2005).
2. Degenerative changes of the left acetabulum were incurred
during active service. 38 U.S.C.A. §§ 1110, 1131, 5102,
5103, 5103A, 5107; 38 C.F.R. § 3.303.
3. The criteria for a 50 percent initial evaluation for
obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1155,
5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.10, Part 4, Diagnostic Code 6847 (2005).
4. The criteria for a 10 percent initial evaluation for
colon resection have been met. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Part 4,
Diagnostic Codes 7319, 7327 (2005).
5. The criteria for a 10 percent initial evaluation for
transverse surgical scar have been met. 38 U.S.C.A. §§ 1155,
5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10,
Part 4, Diagnostic Codes 7804, 7805 (prior to and from August
30, 2002) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in line of duty.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Left Knee
There is no competent medical evidence of record indicating
that the veteran currently has any chronic left knee
disability. Although October and December 1988 and January
1989 service medical records reflect that the veteran
complained of left knee pain, the assessments only identified
chronic left knee pain, mild strain of the left knee, and
left knee tendinitis. "[P]ain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted." See Sanchez-Benitez v. West,
13 Vet. App. 282, 285 (1999). The report of an April 2002 VA
medical examination indicates that the veteran does not
currently have any left knee disability. In the absence of
any competent medical evidence indicating that the veteran
currently has or has ever had chronic left knee disability
and competent medical evidence indicating that he does not
currently have any left knee disability, a preponderance of
the evidence is against the claim for service connection for
left knee disability.
During a personal hearing in December 2005, at pages 13 and
14, the veteran testified that he had left knee pain when he
ran, but he had no current treatment and had not sustained
any injury in service. As noted, pain alone does not
constitute a disability and the veteran is not qualified, as
a lay person, to offer a medical diagnosis or etiology. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Left Hip
Although an April 2002 VA X-ray report indicates that the
veteran had normal hips, a May 2000 service X-ray report
indicates that the veteran had slight sclerosis and
irregularity to the acetabulum, which was suggestive of
degenerative changes and the impression was mild degenerative
changes. The March 2000 service X-ray is accorded greater
probative weight than the April 2002 VA X-ray because of the
specific findings set forth in the report. Therefore, a
preponderance of the evidence supports the conclusion that
the veteran currently has mild degenerative changes of the
acetabulum which were first manifest during active service,
warranting service connection for mild degenerative changes
of the acetabulum.
Although a March 2000 service medical record indicates an
assessment of left hip greater trochanteric bursitis with
iliotibial band syndrome, the report of an April 2002 VA
medical examination indicates that the veteran does not
currently have any bursitis of the left hip. There is no
other competent medical evidence indicating that the veteran
currently has any disability of the left hip other than the
previously acknowledged mild degenerative changes of the
acetabulum. All of the competent medical evidence which
addresses the subject indicates that the veteran does not
currently have bursitis of the left hip. At page 16 of the
December 2005 personal hearing the veteran indicated that he
did not receive any current treatment for his left hip.
Accordingly, a preponderance of the evidence is against a
finding that the veteran currently has bursitis of the left
hip or any other disability of the left hip other than the
previously acknowledged mild degenerative changes of the
acetabulum.
II. Increased Ratings
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disabilities. The Board has found nothing in the historical
record that would lead to the conclusion that the current
evidence of record is not adequate for rating purposes. The
Board is of the opinion that this case presents no
evidentiary considerations, except as noted below, that would
warrant an exposition of the remote clinical history and
findings pertaining to the disabilities at issue.
Disability evaluations are determined by applying the
criteria set forth in the VA's Schedule for Rating
Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.
The Board attempts to determine the extent to which the
veteran's service-connected disability adversely affects his
ability to function under the ordinary conditions of daily
life and the assigned rating is based, as far as practicable,
upon the average impairment of earning capacity in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
Regulations require that where there is a question as to
which of two evaluations is to be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.
These evaluations are initial ratings. Therefore, the rule
from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the
present level of disability is of primary importance is not
applicable. See Fenderson v. West, 12 Vet. App. 119, 126
(1999). At the time of an initial rating separate ratings
can be assigned for separate periods of time based on facts
found, a practice known as staged ratings. Id., at 125.
Obstructive Sleep Apnea
A February 2001 record reflects that the veteran received a
CPAP breathing assistance device and a January 2004 private
medical record reflects that the veteran required continued
CPAP use. During the veteran's personal hearing in December
2005, at page 11, he testified that if he did not use his
CPAP machine he would stop breathing at night.
With consideration of the record which reflects that the
veteran has had a CPAP machine since his discharge from
service, and that he requires continued use of it, the Board
concludes that the evidence supports a 50 percent evaluation
for obstructive sleep apnea under Diagnostic Code 6847 of the
Rating Schedule based on the veteran's required use of a
breathing assistance device such as a CPAP machine. However,
a preponderance of the evidence is against a higher
evaluation under Diagnostic Code 6847 because there is no
competent medical evidence indicating that the veteran
experiences chronic respiratory failure with carbon dioxide
retention or cor pulmonale or that he has required a
tracheostomy. Therefore, a preponderance of the evidence is
against an evaluation greater than the 50 percent granted
herein.
Colon Resection
The veteran's service-connected colon resection has been
evaluated under the provisions of Diagnostic Code 7319 of the
Rating Schedule. An August 2002 letter from a private
physician reflects that the veteran experiences definite
frequent disturbance of bowel function and abdominal
distress. During the December 2005 personal hearing, at
pages 3 and 4, the veteran testified that he had daily
constant pain, stools that were loose, firm, as well as soft,
and no alternating diarrhea or constipation. This evidence
warrants the assignment of a 10 percent evaluation based on
moderate irritable colon syndrome where the veteran has
frequent episodes of bowel disturbance with abdominal
distress. However, a preponderance of the evidence is
against an evaluation that is higher because the veteran is
not shown to have severe irritable colon syndrome with
diarrhea or alternating diarrhea and constipation with more
or less constant abdominal distress. Rather, a preponderance
of the evidence indicates that he does not have constant
diarrhea or alternating diarrhea and constipation with
constant abdominal distress.
Surgical Scars
The veteran's surgical scars have been evaluated as
noncompensably disabling under Diagnostic Code 7805 of the
Rating Schedule prior to and from August 30, 2002.
Diagnostic Code 7805 prior to and from August 30, 2002,
essentially provides that a scar will be rated on limitation
of the part affected. Diagnostic Code 7804, prior to and
from August 30, 2002, essentially provides that a 10 percent
evaluation will be assigned for a scar that is painful on
examination.
Although the April 2002 VA medical examination as well as the
veteran's testimony during the personal hearing in December
2005, at page 9, indicate that the scars on his abdomen are
not painful to the touch, the veteran has testified and a
November 2006 (sic) letter from Dr. Shuler, M.D., a private
physician, reflects that the veteran experiences a spasm of
the abdominal wall with hardening in the area above and below
a transverse scar. The veteran has indicated that following
this spasm there is pain for a couple of days, effectively
causing the scar to be painful.
With consideration of competent medical evidence identifying
the muscle spasm, as well as the veteran's testimony, the
Board concludes that the spasm around the transverse scar may
be rated by analogy to the scar being painful, thus
warranting a 10 percent evaluation under Diagnostic
Code 7804. Therefore, a 10 percent evaluation for a painful
transverse scar is warranted. A preponderance of the
evidence is against a higher evaluation under Diagnostic
Code 7805 because the evidence does not show that the scar
affects the function of any part.
III. Veterans Claims Assistance Act
The Court's decision in Pelegrini v. Principi,
18 Vet. App. 112 (2004), held, in part, that a Veterans
Claims Assistance Act of 2000 (VCAA) notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In this case, this
requirement was satisfied by a November 2001 letter to the
veteran.
The Board finds that the veteran has been provided VCAA
content complying notice and proper subsequent VA process by
the November 2001 letter as well as letters in February 2004
and January 2005 and statements of the case in January 2004
and January 2005 and a December 2004 supplemental statement
of the case, all of which provided the veteran with VCAA
implementing regulations.
The content of the notices provided to the veteran complied
with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b). The veteran was advised to submit any
treatment records pertinent to his claims, effectively
informing him that he should submit any evidence that he had
that was relevant. He was informed of the information and
evidence that was of record and what was necessary to
substantiate his claims. He was also informed of what
information VA would attempt to provide and what he was
expected to provide. He has been provided with every
opportunity to submit evidence and argument in support of his
claims and to respond to VA notices. For these reasons, to
decide the appeal would not be prejudicial error to the
veteran.
With respect to the VA's duty to assist, service medical
records and private treatment records have been obtained.
The veteran has been afforded a VA examination and a personal
hearing. In February 2004 the veteran submitted a statement
indicating that he had no additional relevant medical
evidence to submit. At the time of the December 2005
personal hearing he submitted additional private medical
evidence and waived RO consideration of the same. The Board
finds that the record on appeal is sufficient for a decision
on the claims decided herein. 38 U.S.C.A. § 5103A.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for a left knee disability is denied.
Service connection for degenerative changes of the left
acetabulum is granted.
An increased initial evaluation of 50 percent for obstructive
sleep apnea is granted, subject to the laws and regulations
governing the payment of monetary benefits.
An increased initial evaluation of 10 percent for colon
resection is granted, subject to the laws and regulations
governing the payment of monetary benefits.
An increased initial rating of 10 percent for a transverse
surgical scar is granted, subject to the laws and regulations
governing the payment of monetary benefits.
____________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs